Officials, experts weigh in on decision not to prosecute student's alleged racist threat

GREAT BARRINGTON — Racist remarks about a Monument Mountain Regional High School football player did not constitute a threat, police said Thursday, because they were "made to another person and not to the victim directly."

A day after Great Barrington Police announced no charges would be filed in the case, Police Chief William Walsh released a statement to The Eagle explaining why the incident was not a crime.

"It was a derogatory remark that expressed an offensive opinion, but was not in the nature of a threat or call to action, and therefore constituted free speech," he wrote. "The [department] received guidance from the FBI on investigating this incident and found that the exact remark that was made did not carry with it any direct or overt threat to commit a crime, under the strict definition of the law."

It's the standard of a "direct or overt threat," Town Manager Jennifer Tabakin added, that made the difference to the case.

The incident in question came on Sept. 26, when a white student at the high school allegedly threatened to "lynch" a black varsity football player from the school for "taking a knee" during the national anthem at a Sept. 23 away game in Athol to protest the recent killings of black men by police. The student also allegedly said he would "use [the player's] body for target practice."

The accused student called the accusations "a pack of lies" according to a report by weekly Great Barrington newspaper the Berkshire Record. Neither student has been publicly identified.

The school's administration and the police department launched separate investigations into the incident. The school disciplined the accused student, but the punishment has not been publicly released.

The department said on Wednesday the threat was not a "prosecutable offense" and closed the case.

Experts weigh in

Jack Levin, professor emeritus of Sociology and Criminal Law at Northeastern University, told The Eagle in an email that hate crimes have varying definitions under the law.

"Typically, a hate crime occurs when an individual is the victim of a criminal offense, e.g., vandalism, assault, murder, because he or she is different with respect to race, religion, national origin, ethnicity, sexual orientation, or disability status," Levin wrote.

Levin said hate crimes are usually acts of violence and repression, but that a threat falls under the statute if the motivation of the perpetrator is determined to have played a role.

"A threat to do physical harm is against the law," Levin wrote. "In this case, however, the prosecutors apparently regarded the words of the alleged perpetrator as an idle threat lacking in substance."

Levin added that he understood the intent of the language used in the incident could be open to interpretation.

"I don't believe that everyone would agree as to whether the language used was serious or benign," wrote Levin. "I also doubt that you would get total agreement that the words did not refer to the race of the victim."

Carl Williams, a lawyer for the American Civil Liberties Union of Massachusetts, agreed, saying that intent was important in determining whether a derogatory statement was a hate crime.

"People have the right to say whatever they want as long as that doesn't encroach on people's rights," Williams said.

Williams said he had concerns over the reaction to the incident— and questioned whether the reaction would have been the same under different circumstances.

"Some people's rights seem to be protected more than other people's rights," Williams said.

He used a hypothetical example of a devout Syrian Muslim student at a school threatening similar violence against "heathens."

"Does anyone think the FBI wouldn't be there in force?" Williams asked rhetorically.

Local reactions

Gwendolyn VanSant, the director of local racial justice organization Multicultural BRIDGE, told The Eagle she hoped the school would pursue "restorative justice" for the student body.

"The students are looking for guidance right now," she said. "They're confused."

Dennis Powell, the president of the Berkshire Chapter of the NAACP, told The Eagle in an email that as he understood it, Wednesday's ruling was "based on the law."

Powell and the NAACP have called for a solidarity demonstration for the next two Fridays at Monument's football home games at 7 p.m. to take a knee in the stands to show support for the player at the center of the incident.

He said he hoped the accused student returns to the school to rejoin the community — and the conversation.

"I believe that the [accused] student should be returned to the school so that the healing process can begin," Powell said. "He needs to be part of the discussions that are taking place at the school."

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